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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6549

November 18, 1988

LAW ENFORCEMENT COUNCIL:

Authority of council to waive minimum employment standards for police officer

The Law Enforcement Council may waive the minimum employment standards for police officers only as authorized by MCL 28.609(1)(d) and (3); MSA 4.450(9)(1)(d) and (3), but is not authorized to waive the standards on a case-by-case basis.

Mr. Leslie VanBeveren

Executive Secretary

Law Enforcement Council

Department of State Police

7426 North Canal Road

Lansing, Michigan 48913

You have requested my opinion as to whether the Law Enforcement Council (Council) has the authority to suspend, on a case-by-case basis, the rules it has promulgated pursuant to the provisions of the Michigan Law Enforcement Officers Training Council Act of 1965 (MLEOTC Act), MCL 28.601 et seq; MSA 4.450(1) et seq, concerning minimum employment standards for police officers.

The rules in question were promulgated by the Council pursuant to section 9 of the MLEOTC Act, MCL 28.609; MSA 4.450(9), which provides, in pertinent part:

"(1) The council shall prepare and publish minimum employment standards with due consideration to varying factors and special requirements of local police agencies relative to:

"(a) Minimum standards of physical, educational, mental, and moral fitness which shall govern the recruitment, selection, and appointment of police officers.

"(c) Minimum courses of study, attendance requirements of at least 240 instructional hours, equipment, and facilities required at approved city, county, township, village, or corporation police training schools.

"(d) The requirements in subdivision (c) shall be waived if any of the following occur:

"(i) The person has previously completed the mandatory training requirements and less than 1 year of police service, has voluntarily or involuntarily discontinued his or her work as a law enforcement officer, and is again employed within 1 year after discontinuing work as a police officer.

"(ii) The person has served more than 1 year and less than 5 years, has completed the mandatory training requirements, and takes employment with another police agency within 18 months of discontinued service.

"(iii) The person has served 5 years or more and takes employment with another police agency within 2 years of discontinued service.

"(iv) The person is a member of a sheriff's posse or police auxiliary temporarily engaged in the performance of his or her duties under the direction of the sheriff or police department.

"(2) Except as otherwise provided in this act, a regularly employed person employed on or after January 1, 1977, as a member of a police force having a full-time officer shall not be empowered to exercise all the authority of a peace officer in this state, or employed in a position which is granted the authority of a peace officer by statute, unless the person has complied with the minimum employment standards prepared and published by the council pursuant to this section....

"(3) The council may establish an evaluation or testing process, or both, for the purpose of granting a waiver of the mandatory training requirements to those law enforcement officers who have been certified under this act and who discontinue employment as a law enforcement officer for a period of time exceeding the time prescribed in subsection (1)(d)(i), (ii), or (iii)." (Emphasis added.)

"Police officer" or "law enforcement officer," as used in the MLEOTC Act, means

"a member of a police force or other organization of a city, county, township, village or of the state, regularly employed as such and who is responsible for the prevention and detection of crime and the enforcement of the general criminal laws of this state, but shall not include any person serving as such solely by virtue of his occupying any other office or position." MCL 28.602(c); MSA 4.450(2)(c).

An examination of the provisions of MCL 28.609; MSA 4.450(9), reveals that the Legislature has mandated the promulgation of minimum employment standards by the Council, and by virtue of subsection (2) has prohibited persons who fail to meet those standards from exercising the authority of a peace officer, or being employed in such a position after January 1, 1977, unless an exception is specifically provided for in the MLEOTC Act.

While the MLEOTC Act does confer some authority upon the Council to waive certain of the Act's requirements, that authority is relatively narrow. Pursuant to MCL 28.609(1)(d); MSA 4.450(9)(d), the Council may waive the training requirements of subsection (1)(c), but only with respect to officers who meet specific, legislatively imposed requirements relating to prior training and service or who, pursuant to section (1)(d)(iv), are merely temporary members of a sheriff's posse or police auxiliary. MCL 28.609(3); MSA 4.450(9)(3), provides authority for the Council to make a more extensive waiver of the mandatory training requirements but only as to officers who had previously been certified under the Act, and then only if the Council first establishes an evaluation or testing process to be used in granting such waivers. This authority is reiterated in section 11(h) of the MLEOTC Act, MCL 28.611(h); MSA 4.450(11)(h).

Significantly, the only provisions in the MLEOTC Act authorizing the Council to waive any of the minimum standards pertain solely to the mandatory training provisions of section 9(1)(c) and are limited to individuals who have previously been employed and certified as police officers under the Act. There is no provision of the Act authorizing the Council to waive the minimum standards of physical, educational, mental, and moral fitness mandated by section 9(1)(a), nor is there any provision authorizing the Council to waive minimum standards for persons who have not previously been employed and certified under the Act as police officers.

A basic rule of statutory construction, well-established in Michigan case law, is that of "expressio unius est exclusio alterius--express mention in a statute of one thing implies the exclusion of other similar things." Stowers v. Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971). The express grant by the Legislature of a limited power to waive the minimum employment standards under specific legislatively described circumstances must, accordingly, be construed as a withholding of the authority to grant such waivers under other circumstances not expressly authorized. The sole source of an administrative agency's power is the statute creating that agency; if a power is withheld by the Legislature, the agency may not act. Soap & Detergent Ass'n v Natural Resources Comm'n, 415 Mich 728, 736; 330 NW2d 346 (1982).

It is true, as your request observes, that an agency may suspend its rules pending an administrative review. Int'l Union of Civil Rights & Social Service Employees v Michigan Civil Service Comm'n, 57 Mich App 526, 530; 226 NW2d 550 (1975); Berkowitz v Dept of Licensing & Regulation, 127 Mich App 556, 562; 339 NW2d 484 (1983). However, in both of these cases the rules in question were suspended with respect to all parties who may have been affected thereby; they were not suspended on a case-by-case basis. Moreover, the suspension in each of those cases, unlike that proposed here, resulted in a moratorium on the agency's approval or certification of applicants rather than in an affirmative approval thereof. As long as an administrative rule remains in force and without change, that rule may not be ignored by the agency nor waived in a particular case. See, 2 Am Jur 2d, Administrative Law, Sec. 309, p 138.

It is my opinion, therefore, that the Law Enforcement Council has the authority to waive the minimum employment standards mandated by MCL 28.609(1); MSA 4.450(9)(1), only to the extent, and only under the circumstances, that such waivers are expressly authorized by subsections (1)(d) and (3) of that section. It is my further opinion that the Council does not have the authority to waive such standards on a case-by-case basis.

Frank J. Kelley

Attorney General


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